The World Intellectual Property Organization (WIPO) has released the theme of World Intellectual Property Day 2024-Intellectual Property and Sustainable Development Goals: Building a Common Future Based on Innovation and Creation. The theme of this year's intellectual property publicity week is "intellectual property transformation and application to promote high-quality development". The intellectual property team of Beijing Huixiang Law Firm actively carried out various forms of intellectual property publicity activities and participated in establishing the concept of public intellectual property protection.

The case of Yang Liping Company suing Yunhai Food Company for infringement of the copyright of its "Moonlight" dance works is the first civil case in China in which the static pattern of dance works is used as the decorative pattern of chain restaurants and is found by the court to constitute copyright infringement. From the perspective of the protection object and originality requirements of dance works, does the protection object of dance works contain elements such as dance beauty, lighting, music, etc.? Does a single dance movement meet the originality requirements of dance works? Different courts have given different conclusions. The retrial ruling of the Beijing High Court finally found that Yunhai Food Company had infringed the copyright of the dance works of "Moonlight", and the final trial fell, and the dispute over the case was concluded from the judicial level, but the protection of the object and originality of the dance works involved in the case is still worthy of further discussion.

1. brief

The original defendant's point of view

"Moonlight" dance works by China's famous dance artist Yang Liping creation, Yang Liping will work copyright awarded according to law Yang Liping company to exercise.

Yang Liping Company claimed that in order to highlight the catering characteristics and enhance the brand connotation and value, the defendant Yunhai Food Company arbitrarily used the "Moonlight" dance works as the restaurant decoration pattern for external display and publicity (see the figure below), infringing the copyright of the "Moonlight" dance works, and at the same time using Yang Liping's popularity, the relevant public mistakenly believed that the restaurant involved had a commercial cooperation relationship with Yang Liping, constituting unfair competition.

On the left is a video screenshot of "Moonlight" dance works, and on the right is a decorative pattern accused of infringement.

The defendant Yunhai Food Company argued that the accused decorative pattern originated from individual movements of Yunnan folk peacock dance and had no specific directivity. As a static presentation, the accused decorative pattern does not have continuity, and there is no possibility of infringing on dance works; the defendant and Yang Liping Company do not have a competitive relationship, and their behavior is not enough to cause misunderstanding that there is a certain relationship between the two. Confusion occurs, so it does not constitute unfair competition.

The views of the courts at different levels

The first-instance judgment of the Beijing Dongcheng Court held that the essence of dance works lies in the movements of the human body. The character modeling, costumes, lighting, dance beauty, music, etc. in dance performances can be combined with human body movements to express specific themes and thoughts and feelings, and it is determined that the dance movements The "Moonlight" dance under the mutual cooperation of lighting, dance beauty, clothing, music and other elements constitutes a dance work as a whole, the accused decorative pattern used the original content of the "Moonlight" dance work, which infringed the reproduction right of Yang Liping Company on the "Moonlight" dance work, and Yunhai Food Company infringed the copyright of the plaintiff Yang Liping Company.¹

The second-instance judgment of the Beijing Intellectual Property Court held that, on the one hand, dancers' makeup, background lighting, music, etc. are mainly used to set off the atmosphere of the stage presentation and serve the needs of the performance. The personalized design and arrangement of "expression" and other aspects cannot be used as the object of protection of dance works; on the other hand, single dance movements are limited and should not be monopolized by anyone, not enough to meet the originality requirements of dance works. Therefore, the use of a small number of incoherent single dance movements does not constitute an infringement of the copyright of the dance work.²

The retrial ruling of the Beijing Higher People's Court believes that elements such as service and Taoism make the expression of dance works richer and more diverse, and play a positive auxiliary role in the expression of thoughts and emotions in dance works, and thus have an inseparable relationship with the movements, postures and expressions in dance works. The relationship should be protected as part of dance works. "Moonlight" dance works combined with character modeling, moonlight background, light and shade contrast and other elements of the specific dancer's movements, postures and expressions of the overall picture can reflect the original expression of the dance works. As a result, the accused infringing decorative pattern is substantially similar to the original content of the "Moonlight" dance work, which infringes the copyright of the "Moonlight" dance work.³

2. Thoughts on the Protection Object and Originality of Dance Works

Definition of Dance Works

The definition of dance works can be analyzed from the perspective of jurisprudence and legal provisions. At the level of legal research, Professor Zheng Chengsi believes that dance should be the movement design of dance, which can be written or fixed in other forms. 4 Professor Wang Qian believes that dance works refer to the design of the dance movements being performed, not the performance on the stage. 5 Professor Liu Chuntian believes: "Dance is the art of human body movements ...... Dance, as a spatial and temporal comprehensive art, often combines music, poetry, drama, painting, acrobatics and other means to become an independent art category ...... Dance contains three basic elements: dance expression, dance rhythm and dance composition." 6 Therefore, dance works should be based on dance movements and postures, and scholars seem to hold negative opinions as to whether the elements of the service constitute the object of protection of dance works.

From the level of legal provisions, item 6 of Article 4 of the regulations on the implementation of the copyright Law clearly stipulates that dance works refer to works that express thoughts and emotions through continuous movements, postures, expressions and so on. The definition focuses on the role of people themselves, but it is not clear whether other elements of dance works, such as clothing, lights, props and other elements, constitute part of the object of protection of dance works. It can only be interpreted by the judicial organs in the case of corresponding cases, which can easily lead to different judgments in the same case.

Therefore, Yang Liping's "Moonlight" dance works infringement case provides a practical model for theoretical research and judicial trial. In the case of Yang Liping's "Moonlight" dance works, the reason why the courts of first and second instance handled the case differently lies in the different cognition of the protection object and originality of the dance works. However, the retrial court determined that the elements of the service path can be part of the protection object of the dance work Moonlight, and that the overall picture of the dancer's movements, postures and expressions combined with the elements of the service path can reflect the original expression of the dance work, thus determining that the accused infringing decorative pattern is substantially similar to the original content of the dance work Moonlight, which infringes the copyright of the dance work Moonlight of Yang Liping Company, this provides a directional guidance for the protection of the object and originality of dance works in the field of judicial practice.

On the Originality of Dance Works

The originality of a work is a key element of its protection under copyright law. The originality of the work mainly includes two aspects, the first is independence, and the second is a certain degree of "intellectual creativity". Independence refers to the creation of independent ideas, not plagiarism. A certain degree of "intellectual creativity" refers to the creation of the author's unique intellectual judgments and choices, showing the author's personality characteristics. 7

The "independence" in the originality of dance works refers to the requirements for the independence of dance works. One is done independently, without plagiarizing other works. The other refers to the creation on the basis of other people's works. There are substantial differences between the dance works produced by this creation and the original works.

The "creation" in the originality of dance works refers to a certain "intellectual creativity", but how to be the "creation" of dance works still needs to be discussed in detail. Dance works have integrity, in the dance works is not only the dance movement itself, it also contains dance-related costumes, makeup, props and dance music. Every element is indispensable in dance works, and the original cognition of dance works should also be explored from the above elements.

First of all, the dance itself is the dance itself. The innovation of dance movements is difficult, but the choreography, combination and connection of dance movements or the priority of dance movements can also reflect the originality of dance works. As mentioned above, the basic dance movements can form dance sentences or dance segments to express their originality in combination, arrangement or connection. The second is the dance posture, which is a static action. The original arrangement and combination of it can also meet the requirements of "creation" in dance works. The third is the dance expression. In the process of dance, the dance performers can express their personal or dance emotions through expressions. In this process, they can also form a unique expression, which makes the dance works original. The above three are the factors to be considered when identifying dance works as expressly provided for in the law.

In addition, dance rhythm, dance composition and dance beauty are also factors that need to be considered. In different dance works, the strength and amplitude of dance movements may be different, and the dance rhythm formed on this basis is also different, which will cause differences in the overall effect of dance. Dance composition is also an important part of the originality of dance works, using various ways of stage scheduling to form a unique dance composition. Dance beauty is an indispensable part of dance works, including lighting, stage design and scenery, clothing props and other factors. There are many dance works through the specialization of stage design, the unique use of lighting or the unique display of costumes and props, which add an indispensable color to the uniqueness of dance works, express unique artistic conception and ideas, and enhance The beautiful experience brought by dance works.

In the "Moonlight" dance work case, the court held that the author of the "Moonlight" dance work took the element of serving the Tao as part of the content of the dance creation and fixed it in the dance. The creation of a sense of tranquility in the work and the expression of thoughts and feelings in the work are also inseparable from the element of serving the Tao. Therefore, the specific dance posture combined with the elements of the "Moonlight" dance is a part of the original expression of the "Moonlight" dance works and should be protected by the copyright law.

When using relevant pictures, images, designs, videos and other elements in production and business activities, business operators should raise their awareness of copyright protection, pay attention to the possibility of infringing the copyright of others, and encourage business operators to carry out original creations in the light of their own business conditions. avoid infringing upon the copyright of others.

1. See Beijing Dongcheng District People's Court (2021) Beijing 0101 Minchu No. 11814 Civil Judgment.
2. See Beijing Intellectual Property Court (2022) Beijing 73 Civil Judgment No. 973.
3. See Beijing Higher People's Court (2023) Jingmin Shen No. 1039 Civil Ruling.
4. by zheng chengsi. Copyright Law [M]. Beijing: China Renmin University Press, 1997.
5. by Wang Qian. Tutorial on Intellectual Property Law, 5th Edition [M]. Beijing: China Renmin University Press, 2016.
6. editor-in-chief liu chuntian. Intellectual Property Law Fifth Edition [M]. Beijing: Higher Education Press, 2015.
7. Wang Qian. Copyright Law [M]. Beijing: China Renmin University Press, 2015.

Lawyer Presentation

Li Deli

Senior partner of equity of Beijing Huixiang Law Firm, director of Intellectual Property Department I, lawyer, patent agent, senior corporate compliance engineer, deputy director of the Disciplinary Committee of Beijing Chaoyang District Law Association, Beijing Chaoyang District Law Association Anti-monopoly and Deputy Secretary-General of the Anti-Unfair Competition Law Professional Committee, part-time practice master tutor of Guangxi Normal University, member of the lawyer expert database of "Rule of Law Daily.

Cai Manjia

Beijing huixiang law firm intern.